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Privacy The Courts Technology

Justice Sotomayor Warns Against Tech-Enabled "Orwellian" World 166

An anonymous reader writes: U.S. Supreme Court Justice Sonia Sotomayor spoke on Thursday to faculty and students at the University of Oklahoma City about the privacy perils brought on by modern technology. She warned that the march of technological progress comes with a need to enact privacy protections if we want to avoid living in an "Orwellian world" of constant surveillance. She said, "There are drones flying over the air randomly that are recording everything that's happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far we want to protect it and from whom. Because people think that it should be protected just against government intrusion, but I don't like the fact that someone I don't know can pick up, if they're a private citizen, one of these drones and fly it over my property."
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Justice Sotomayor Warns Against Tech-Enabled "Orwellian" World

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  • by Aldenissin ( 976329 ) on Saturday September 13, 2014 @03:24PM (#47897993)

    How high above the dirt do I own? In theory, I could just go straight up with a powerful enough camera lens and zoom in and see what I want on your property from another piece of property, possibly miles away. I see little difference than selling people rights to the dirt, but not to the minerals, and the legality of drilling diagonally underneath someone else's property.

    Right now where I'm at on this is allowing someone to look at my property, as long as they aren't "above" my property, and if they do cross my property line they can be held responsible, including me shooting it out of the sky. I can always go inside, just like neighbors can peer over a fence.

    • by Aldenissin ( 976329 ) on Saturday September 13, 2014 @03:26PM (#47898005)

      Also, as far as I am aware, you are not allowed to have security cameras on your property that film parts of other's properties. Those laws should suffice, or at least be amended to include "roaming" cameras.

      • Re: (Score:2, Redundant)

        by Dragon Bait ( 997809 )

        Also, as far as I am aware, you are not allowed to have security cameras on your property that film parts of other's properties. Those laws should suffice, or at least be amended to include "roaming" cameras.

        Be sure to check with your local laws. IANAL and I understand the law slightly differently --- which might be because we're in different localities (or because IANAL).

      • by fyngyrz ( 762201 )

        An interesting issue is, the photons that formed the image were not on their property at the time, nor do they have a legitimate claim to ownership of those photons just because they happened to bounce off their stuff. They probably bounced off a lot of other stuff, too. "My photon! MY PHOTON!" has more than a little bit of the ring of insanity about it. :)

        If you don't want a photonic record of your actions, the sensible answer is to avoid photons that can form such a thing, i.e., stay inside your dwelling

        • Never heard, nor ever will think I'll hear of that issue again. Uninteresting issue is uninteresting. Sorry.

      • Also, as far as I am aware, you are not allowed to have security cameras on your property that film parts of other's properties. Those laws should suffice, or at least be amended to include "roaming" cameras.

        Ok. I'm calling bullshit. Please provide a sample of such a law. I've never seen video camera footage that did NOT film others peoples property. I'm not really sure how that would be possible while still getting a useful image.

      • One that I enjoyed reading a out is the ariel tram in Portland OR. Residents were concerend with the gondolas flying overhead and peeking into their private back yards. Residents were assured the view is out and not down. One resident then put offencive material in his "private back yard", and there was a stir on his choice of back yard decor. He reminded the tram operators that passangers can not see into his private back yard. Its your problem as it is my private back yard.

        Link http://gondolaproject [gondolaproject.com]

      • by penguinoid ( 724646 ) on Saturday September 13, 2014 @10:45PM (#47899795) Homepage Journal

        Orwellian society has come to us not because of technology, but because of people. Everyone from the President, NSA, Congress, Courts, Law Enforcement, and General Public is guilty of encouraging or simply allowing the erosion of our liberties. Because we need it to fight the terrorists, druggies, and especially child molesters. Think of the children!

        Even if we manage to get government espionage under control, what technology is allowing is for private companies to collect massive amounts of data on us. And every idiot who installs apps on their phone that require "spy on you" permissions is guilty of helping them do so and even financing them. I can't see this stopping until someone makes a sufficiently shocking news story about violations of people's privacy. Maybe someone will make an app that forwards a copy of your browsing history to your mother and significant other, and a message to you saying "this is a small fraction of what every company knows about you".

        • We must learn from the enemy, but we must not become the enemy. What about instead, "honest" websites start collecting what information they can do so legally, and then asking people if they can do what they wish with it, including forwarding it to their mothers. Maybe even ask for their Google/facebook account login (sneakily as the unethical do, teaching them in the process how this happens), and then asking, "Is so and so your mother/wife and would you like to forward this to them?"

          We must get creative.

    • You will not own much property when you need to live in jail / prison to get room and board after the robots take most of the jobs. Or you can go back to school and run up the loans and hope you get a job and have time to pay them off before you get too old and get layed off.

    • by LookIntoTheFuture ( 3480731 ) on Saturday September 13, 2014 @03:40PM (#47898059)
      In a perfect world, people would be polite and ASK if they could take photos of you or your property. But in this reality, people can do whatever they want without thinking about anyone else. Empathy is frowned upon. It's mine and I want it NOW NOW NOW. Wah! he's not letting me do whatever I want to! What an asshole!
    • by SternisheFan ( 2529412 ) on Saturday September 13, 2014 @03:58PM (#47898137)
      In the U.S., you are allowed 'reasonable' air rights. Reasonable meaning a tall antenna so you can pull in radio/TV signals. That seems about as far as you have rights to. From Wikipedia:

      The landowner's claim raises some fundamental legal principles about the ownership of land and the airspace above the land. These principles have been developing over time. In early common law, when there was little practical use of the upper air over a person's land, the law considered that a landowner owned all of the airspace above their land. That doctrine quickly became obsolete when the airplane came on the scene, along with the realization that each property owner whose land was overflown could demand that aircraft keep out of the landowner's airspace, or exact a price for the use of the airspace. The law, drawing heavily on the law of the sea, then declared that the upper reaches of the airspace were free for the navigation of aircraft. In the case of United States v. Causby,[4] the U.S. Supreme Court declared the navigable airspace to be "a public highway" and within the public domain.

      At the same time, the law, and the Supreme Court, recognized that a landowner had property rights in the lower reaches of the airspace above their property. The law, in balancing the public interest in using the airspace for air navigation against the landowner's rights, declared that a landowner owns only so much of the airspace above their property as they may reasonably use in connection with their enjoyment of the underlying land. In other words, a person's real property ownership includes a reasonable amount of the airspace above the property. A landowner can't arbitrarily try to prevent aircraft from overflying their land by erecting "spite poles," for example. But, a landowner may make any legitimate use of their property that they want, even if it interferes with aircraft overflying the land."[5]

      http://en.wikipedia.org/wiki/A... [wikipedia.org]

      • by careysb ( 566113 ) on Saturday September 13, 2014 @04:25PM (#47898263)

        You can't put the genie back in the bottle. Every recording method and device is suspect, not just drones. 1984 has been privatized and the price has come down to the level that a typical home owner can afford it. And, not everyone that can afford it is a peeping-tom.

        Canada seems to be ahead of the curve compared to the U.S..

        drone-based-businesses-soar-in-canada-as-faa-grounds-us-entrepreneurs:
        https://gigaom.com/2014/09/12/... [gigaom.com]

        • by alen ( 225700 )

          and guns are legal in most of the USA so i can shoot someone's drone out of the sky if it's spying on my property

          • and guns are legal in most of the USA so i can shoot someone's drone out of the sky if it's spying on my property

            The gun you are looking for is called a HERF [slashdot.org] gun. A HERF gun is a form of directed energy weapon. Think of it as an aimed EMP. The drone just drops out of the sky completely dead.

          • by MrKaos ( 858439 )

            and guns are legal in most of the USA so i can shoot someone's drone out of the sky if it's spying on my property

            Falling bullets still mame and injure people, even if they don't kill. Wouldn't it just be easier to interfere with the control signals and "liberate" the drone from it's owner? You have a mains powered transmitter - they have batteries. Yes they can encrypt the signals, yes you can still make the drone uncontrollable.

      • by Jane Q. Public ( 1010737 ) on Saturday September 13, 2014 @05:05PM (#47898449)

        The U.S. Supreme Court declared the navigable airspace to be "a public highway" and within the public domain.

        HOWEVER:

        the authority to govern "navigable" airways comes with some caveats, which most people here aren't considering.

        First, "navibable" in U.S. law implies that manned craft can use that route to travel interstate. That is pretty much the same definition as "navibable" waters.

        The Federal government's AUTHORITY to govern "navigable airways", just like their authority to govern "navigable waters", stems from their authority, granted by the Constitution, to govern interstate commerce.

        "Navigable airways" are particular altitudes and routes. They are clearly defined in aviation charts.

        Everything else is "fair game", and by the Constitution (and Common Law) is up to the landowners and the States.

        To put it in a nutshell: by ancient common law (which still holds; U.S. is a Common Law country) everything EXCEPT the clearly-defined "navigable airways" is indeed legally controlled by the landowner below, and is not subject to Federal jurisdiction.

        Further, in my state, it is not legal to use any means to "surveil" property which isn't normally visible from the street, by ANY means, including aircraft, without a warrant. And yes, that means using a stepladder to see over the fence IS a crime.

      • by msauve ( 701917 )
        " a landowner may make any legitimate use of their property that they want, even if it interferes with aircraft overflying the land."

        So the FAA has no say if I fly drones over my land (or private land where I have the owner's permission).
    • by PopeRatzo ( 965947 ) on Saturday September 13, 2014 @04:08PM (#47898179) Journal

      How high above the dirt do I own?

      Zero. Since the Supreme Court's Kelo decision, you don't "own" a goddamn thing. You have property only at the pleasure of the government, and as long as there isn't a corporation who can make better use of your property. And by "better use", I mean, will pay more in taxes.

      https://en.wikipedia.org/wiki/... [wikipedia.org]

      • by flyneye ( 84093 )

        You can own property if you have a Land Patent. Good luck getting one of those; like you said, the Supremes served their masters well.

        • by Reziac ( 43301 ) *

          There are always "patented mining claims" for sale in my state. Does the patent convey with the title?

          • by flyneye ( 84093 )

            The patent means the property stays in your name, cannot be judged against, confiscated or be part of Eminent Domain. Nor would it be subject to sale to satisfy your debts.
            Groovy instrument!

    • by pubwvj ( 1045960 ) on Saturday September 13, 2014 @04:15PM (#47898217)

      Actually, "how high above the dirt you own" is already well defined, both in law, regulation and court cases. What is happening at the ground and a bit above on your property is yours and you can even own copyright on it. Government and individuals are not supposed to snoop on you. Fliers are not supposed to fly below 500' above you in rural areas, higher in urban areas. The result is that if someone is peeping on you in a situation where you can reasonably expect privacy you can sue them and they can also separately be fined and imprisoned by the government. The government itself is supposed to get a warrant to view you.

      Just as importantly, the other logical question is how far down below the surface do you own. This is your mineral rights.

      Typically in the eastern United States you own all the way down, let's say to the mantle. The exact depth doesn't get too much precedence since deep drilling hasn't been done but fracking may be changing that soon.

      Out in the western United States you may well not own below your surface soil, you may well not own your mineral rights, you may well not own your water rights and you may well not even own the rain that falls upon your land. Check your deed and your state laws.

      In the fourth dimension of space you own nothing. That is possibly reserved for the alternative owners who may or may not own the land you own in this variation of the multiverse. This will not appear on your deed.

      In the fifth dimension (time) your ownership started at some point in the past delineated by your purchase and will end at some point in the future marked by your death or other event. Again, check your deed for the particulars.

      • Out in the western United States you may well not own below your surface soil, you may well not own your mineral rights, you may well not own your water rights and you may well not even own the rain that falls upon your land. Check your deed and your state laws.

        This. I got roped into a sales presentation one time in Las Vegas where they were trying to sell land in some no-name town that supposedly had an aquifer under it and the land was going to be very valuable very soon. The minute I mentioned mineral rights the sales team whisked me out of there so fast it took my hat 5 minutes to catch up. Clearly the deal was not actually going to include the rights to the water, if any, and they didn't want me anywhere near any of the other victims^H^H^H^H^H^H customers.

      • by Nyder ( 754090 )

        In the fifth dimension (time) your ownership started at some point in the past delineated by your purchase and will end at some point in the future marked by your death or other event. Again, check your deed for the particulars.

        Hmm, according the the book "A Wrinkle in Time" https://en.wikipedia.org/wiki/... [wikipedia.org] Time is the fourth dimension. Plus the Tesseract Concept was I thought a great solution to getting around. I do want to point out it was like 30 years ago when i read this book. But I was down with a red head smarty/nerdy chick being the hero.

    • by jklovanc ( 1603149 ) on Saturday September 13, 2014 @04:23PM (#47898253)

      and if they do cross my property line they can be held responsible, including me shooting it out of the sky.

      Can you shoot down airliners who cross your property lines?
      You actually don't own all airspace over your property. There has been a SCOTUS ruling [wikipedia.org] on the matter.

      Thus, a landowner "owns at least as much of the space above the ground as he can occupy or use in connection with the land," and invasions of that airspace "are in the same category as invasions of the surface.

      It is clear that the land owner does not own navigable airspace. Navigable airspace is defined with respect to fixed wing aircraft, the FAA has done that, it is unclear as to what navigable airspace means with respect to small drones. There is even a clause that allows helicopters to fly below normal flight minimums. There still needs to be legislation defining exactly what "space above the ground as he can occupy or use in connection with the land" legally means. Having to fly comercial drones at fixed wing minimums would render them useless. This is one of the reasons why the FAA is holding back on allowing commercial drones as the laws backing them up are unclear.

    • You have no rights to what you might think is your property. Truth of the matter is when the US signed onto the TPP deal, they signed over US Sovereignty to corporations, thus US Sovereignty is now property of corporations. Thus meaning the power of the entity that granted the deed of your property to you or the people that hold the note on it was signed over to corporations, thus is the event horizon of the black hole in the home lending market. You under the TPP can't own property anymore but they are

  • enh (Score:5, Insightful)

    by roc97007 ( 608802 ) on Saturday September 13, 2014 @03:25PM (#47898001) Journal

    The impression I got was that she was more against private ownership of camera-equipped drones. I'm guessing that this argument will be used to put limits on individually owned drones, not on government owned drones.

    • I'm guessing that this argument will be used to put limits on individually owned drones, not on government owned drones.

      Or on corporate drones. Many of the surveillance drones used by the government are actually owned and operated by contractors. The big corporations won't have any problem owning drones.

      • I'm guessing that this argument will be used to put limits on individually owned drones, not on government owned drones.

        Or on corporate drones. Many of the surveillance drones used by the government are actually owned and operated by contractors. The big corporations won't have any problem owning drones.

        You're right. And as I said in another response, I'm thinking that media drones will also get a legal pass, as long as they're not used to embarrass the police, by, you know, exposing their misuse of surplus military equipment, as just one example.

  • Hmm... (Score:5, Insightful)

    by Anonymous Coward on Saturday September 13, 2014 @03:27PM (#47898009)

    Isn't she one of the very people that actually helped to build the Orwellian society we already have?

    Because people think that it should be protected just against government intrusion, but I don't like the fact that someone I don't know can pick up, if they're a private citizen, one of these drones and fly it over my property

    Except private citizens aren't doing this and lack the funds and tools to do it even if they wanted to. Our government, on the other hand, is fist-deep in our assholes at any given moment. I'm not sure I understand the logic behind allowing the government to do as it pleases, while placing further limitations against citizens that aren't even a problem to begin with.

    • Sure, she is one of the people to blame, if you have a reductionist view that all government members have the same goal and opinions.

      And if you have no idea how the supreme court works.

      Given that, you're totally correct. How about specific cases?

  • It would sure help if people stopped throwing enormous wads of cash at companies peddling Orwellian wares designed to spy on you, or guide you into uploading everything you do to their web servers for data mining.

    But no. Hundreds of millions of us stand in line to fork over cash to those companies. THAT is why we live in an Orwellian world. Well, no, I take it back... it's just one reason. There are other reasons too. But it sure as fuck doesn't help.

  • if only (Score:4, Funny)

    by Cardoor ( 3488091 ) on Saturday September 13, 2014 @03:34PM (#47898043)
    if only she were in some sort of position to do more than talk to oklahoma students about the topic.. ah well.
    • Right, it's not like she isn't doing this as a PR stunt that will be widely reported on how she is "mentoring" our future.

    • Re:if only (Score:5, Informative)

      by PopeRatzo ( 965947 ) on Saturday September 13, 2014 @04:17PM (#47898229) Journal

      if only she were in some sort of position to do more than talk to oklahoma students about the topic.. ah well.

      Do you understand how the Supreme Court works? They can only adjudicate cases brought before them. They can't make policy outside of those cases, so in fact, she is not in a "position to do more than talk" until a case comes before her challenging surveillance. And even then, she's one vote out of nine.

      A Supreme Court justice can do three things in their official capacity: talk, write and vote, and the talking they do is mostly asking questions. They can't initiate any action at all.

      If you want something "done", you've got to talk to your congressbum.

      • Re:if only (Score:5, Insightful)

        by AthanasiusKircher ( 1333179 ) on Saturday September 13, 2014 @04:46PM (#47898351)

        Do you understand how the Supreme Court works? They can only adjudicate cases brought before them.

        While true in a strict sense, in a broader sense the Supreme Court has the ability to shape jurisprudence around bigger issues. Take, for example, the recent plethora of federal court rulings overturning gay marriage bans in a number of states. The Supreme Court did NOT rule on this issue directly. In fact, the majority rulings last year explicitly avoiding tackling that issue. But, as Scalia noted in dissent at the time, the type of argumentation used in the majority opinion strongly implied that no legal logic would support a gay marriage ban.

        So, in the process of adjudicating a case before them, the Supreme Court laid the groundwork for other rulings that were strictly unrelated, but followed from the legal arguments employed.

        In this way, Supreme Court justices can shape jurisprudence on cases far beyond their docket. If they begin to make strongly worded objections to Fourth Amendment violations and present new legal justifications for stopping those violations, chances are those sorts of legal arguments will be upheld by lower courts.

        And even then, she's one vote out of nine. [snip] If you want something "done", you've got to talk to your congressbum.

        True, but 1 out of 9 is somewhat better odds than 1 out 435 in terms of hoping to "get something done," particularly when a number of privacy-related cases have been coming before the Court in recent years.

        • While true in a strict sense, in a broader sense the Supreme Court has the ability to shape jurisprudence around bigger issues.

          But only as far as the cases that come before it, whether or not they accept them.

          That's true both in the strict sense, and the broader sense. The Supreme Court can not initiate any action.

          • But only as far as the cases that come before it, whether or not they accept them.

            That's true both in the strict sense, and the broader sense. The Supreme Court can not initiate any action.

            Well, as of last year, it seems it can (in a way), as long as someone involved in a lawsuit elsewhere asks nicely. The Court has now created ex nihilo a new veto power for itself. The precedent is United States v. Windsor [wikipedia.org]. As Justice Scalia wrote in dissent:

            The Court is eager--hungry--to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges, in Article III, only the "judicial Power," a power to decide not abstract questions but real, concrete "Cases" and "Controversies." Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

            [snip]

            Windsor's injury was cured by the judgment in her favor. [...] What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction.

            In other words, there was no dispute before the court to adjudicate, and thus no case (in a legal sense). Yet the Supreme Court nevertheless chose to offer its opinion on gay rights and overturn a federal law, despite a lack of any standing, any disp

            • Thanks for pointing that out. I'm grateful if only because it led me to Larry Tribe's very interesting article about Scalia's tantrum in this case.

              That's what's interesting about the Supreme Court. They all are smart, write persuasively. But there's always someone smarter, more persuasive. And in the case of Scalia, where he's writing from an activist agenda, you always have to get a second opinion.

              http://www.scotusblog.com/2013... [scotusblog.com]

      • glad to know that you've read the textbooks on how it works. when you get to the real world, let me know.
  • She's worried that common, private citizens can get camera drones and fly them above your property as if that ability wasn't available before now in multiple forms? What about governments doing it since we've had satellites? So does having 4 blades matter vs 2? As a land owner and private citizen, is she ready to a) accept that I own this column of earth above and below? b) to what heights do I own c) what rights is she now going to work towards removing to rid us of this scary, old thing?
    • Re:Just now? (Score:4, Insightful)

      by PopeRatzo ( 965947 ) on Saturday September 13, 2014 @04:24PM (#47898257) Journal

      She's worried that common, private citizens can get camera drones and fly them above your property as if that ability wasn't available before now in multiple forms?

      To be fair, "private" means corporations, too. Until I see a vote on a lower court decision, I'm going to give her the benefit of the doubt. She's been only one of maybe three Supreme Court justices who seem to believe in privacy. And one of the others seems to think privacy only applies to men and corporations.

  • That's precisely why we have a judicial branch,

    to overrule legislated abridgments to our constitutionally-protected freedoms.

    It's too bad Mademoiselle Sotomayer isn't in a position to help with that.

  • This and the "Automatic Lip Reading" story both approach the attitude of technophobia. I get it. People are affraid that new technologies will encroach on personal freedoms. But it's a futile attitude. One thing is certain --
    progress will occur!

    The only solution is for freedom lovers to co-opt the technology itself. Camera's everywhere are a problem? Then pass laws that require all government owned camera's to be publicly accessible on the web to everyone all the time. Drones are encroaching on
  • ...but I thought judges weren't supposed to show any bias?
  • ...news, and the realization of how big will become apparent in the short term future.

  • When I hear from time to time those wonderful thoughtful remarks by US politicians that seem to be so upfront against "reactionary" establishment, it always reminds of a 30-year old (at least) Russian meme called "The fight of Nanay boys". Basically, those Nanay folks of Far North of Russia had had this traditional entertainment show called "The fight of Nanay boys" where an entertainer would dress his lower and upper parts of his body in clothes in such a way so when he bends forward and stands on his feet

  • . . . Did she just crawl out of a cave or something? Has she never heard of Edward Snowden, Glenn Greenwald, The Intercept over at firstlook.org, wallstreetonparade.com, cryptogon.com, crytome.org, wikileaks.org? WTF to the max, dood???
  • I don't know can pick up, if they're a private citizen, one of these drones and fly it over my property.

    If I follow the reasoning, if you have no property, you have no right to privacy, right?

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